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Commerce and Related Civil Liberty
Modern copyright originated in legislation intended as a mechanism to promote the creation of works. The long title of the Statute of Anne 1709 (the beginning of modern copyright law) describes the statute as being for "the Encouragement of Learning" (British Copyright Act, 1709). Similarly, the stated aim of the provision for copyrights and patents in the USA constitution is "to promote the Progress of Science and useful Arts" (USA Constitution, art. I, sec. 8, cl. 8). Today, as a result of media industry campaigning copyright is widely regarded as a moral right. [ Read more ]
We agree with the historical view, and believe copyright law can only be justified as an economic measure, not as a moral right. [ Read more ]
This distinction means that in our view, copyright is not a justification for imposing on personal liberty. We think copyright law should should not restrict personal liberty, and should restrict commercial activity only in so far as is economically optimal and equitable.
Research suggests that the current economically optimal copyright length is about 15 years. As copyright is extended beyond this point, the marginal economic benefit of further encouraging the creation of works is outweighed by the the marginal economic detriment caused by further disallowing the use of works (Pollock, 2009). Further, current copyright terms hinder the preservation of works, meaning works may be lost before their copyright term ends (Bamberger, 2010). Copyright is also disproportionately burdensome on the least well off, and therefore we suggest setting the term of copyright to 10 years from publication.
When copyright law was originally introduced, it essentially only restricted commercial activity. Only publishing companies had the technology to make copies, so only publishing companies were effected by copyright law. Because of the advancement of technology copyright law now restricts personal liberty. Because we think that copyright law can only be justified as an economic measure, not a moral right, we think copyright law should not restrict personal activities which people do not receive money for, as others have suggested (Litman, 2001, p. 180; Patterson, 1968, pp. 194, 215, 228).
'Digital Rights Management'
'Digital Rights Management', or DRM, refers to technological measures that restrict the use of works. Publishers use DRM not only to enforce copyright law, but also to impose other restrictions, such as requiring people to watch previews before a movie or preventing people from watching legal copies of movies bought overseas. DRM anti-circumvention law (legal restrictions on circumventing DRM) effectively gives the force of law to any restrictions imposed by DRM. Further, even if the copyright term were reduced, DRM would continue to restrict the use of works after the copyright term ended. Because we don't think copyright should restrict personal activities, we think DRM anti-circumvention law should be repealed. We also think that people should be notified when buying something that's use is effectively restricted by technological measures.
Patent law covers the use of inventions, which could be developed independently by more than one party. The laser and microchip are two prominent examples of inventions known to have been developed independently by more than one party. It will not always be possible, however, to establish whether an invention was copied or developed independently, and consequently, for patent law to effectively restrict the use of inventions at all, it must restrict the use of those developed independently. This is a practical problem, and also, we think, an obvious reason that patents are not a moral right.
In the USA in 1800, 10 years after the first federal patent law was passed, a total of 307 patents had been granted. In 2010, there were over 2 million patents in force in the USA. For a product developer intending to sell in this market to ensure they are acting within the law, they must first check that no part of any of their products are covered by any of these patents. The difficulty of this requirement creates uncertainty, and brings an economic cost. This is especially problematic for the software industry, because patents that cover software are often very abstract, and computer programs can include thousands of functions any of which might potentially be covered by patents. Software patents can also hinder interoperability.
Patents are only one of several motivators for innovation, and a thorough literature review has found it to be well established that in most industries, other factors, such as lead time and secrecy, are more relevant than patents (López, 2009, p. 21). Past research suggests that only in the pharmaceutical and chemical industries would a large number of innovations not have been developed without patents (Mansfield,1986), and current research suggests that, taking into account the economic cost of patents, it is only in these industries, where patent cover is unambiguously defined in terms of chemical formulae, that patents provide a net economic benefit (Bessen, 2008).
We think patents on living things and intangible 'inventions' such as software are of particular concern, because both impact on personal liberty, as intangible 'inventions' such as software can be developed and copied using consumer products, and living things are self-replicating. Accordingly, our policy is to exclude life and intangible 'inventions' such as software from patent cover. For other areas, we would seek more information about where patents provide a net economic benefit, and keep patents in these areas unless and until more efficient or equitable methods of promoting innovation are available.
In countries with a substantial public health system, public funds are used to pay for patented medicines, and these funds are allocated based on priorities determined by the public health system. Patent agreements between countries provide the funding for research done in one country which benefits another. In these cases, then, money to be spent on pharmaceutical research is already determined by governments, and supported by international agreement, and, as the Pirate Party of Sweden suggests, we think it would be more efficient for governments to fund pharmaceutical research directly, rather than through pharmaceutical patents.
Further, current pharmaceutical patents have the inequitable consequence of denying medicines to people, for example those in poorer countries, who could afford to pay the cost of production, but can not afford to contribute to research costs.
Corporate Respect for Privacy
It is a concern to us that there appears to be an increasing trend for companies to require the disclosure of personal information--such as contact lists and location information provided by cellphones--when offering services. Because of this we suggest that, when providing services, companies should not require disclosure of more information than is necessary for providing the service.
Government and Related Civil Liberty
Recent acts of terrorism, prominently those in the USA on 11 September 2001, are a catalyst for the erosion of individuals' right to privacy in the name of public safety. The USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) is a prominent example of legislation that legitimised warrentless wire-tapping. Its title carries the implication that anyone who would assert a right to privacy is not a patriot, and therefore not entitled to privacy.
Terrorism is not a new phenomenon. It has been employed by the KKK in opposition to racial equality, the IRA in opposition to British rule, Ulster loyalists in opposition to the opposition of British rule (or at least in opposition to advocacy for rule by a reunited Irish nation), and many others. Consequently, tension between concerns for public safety and civil rights is not a new phenomenon. What is new is the inherent insecurity of many modern forms of communication which has made the erosion of privacy possible, and this erosion had already begun prior to 11 September 2001.
We believe that an individual right to privacy remains important, in spite of claims of the need for surveillance for the greater good, and we are not convinced that overriding the right to privacy best serves the greater good.
We suggest that the Government should refrain from using new technology for surveillance until the issue has been subject to democratic consideration, and, in the absence of a constitution limiting the powers of Government, that a referendum or 75% majority in Parliament be required to extend Government surveillance powers under law. Legislation alone, however, does not address the inherent insecurity of many modern forms of communication which has made the erosion of privacy possible, and accordingly we also suggest the encouragement of privacy measures such as encryption.
Commerce Section References
- American Bar Association Section of Antitrust Law (2007) Intellectual Property and Antitrust Handbook.
- Bamberger, Rob; Brylawski, Sam (2010) The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age.
- Bessen, James & Meurer, Michael J. (2008) Patent Failure. Princeton University Press.
- Bessen, James E. (2011) A Generation of Software Patents. Boston Univ. School of Law, Law and Economics Research Paper No. 11-31; Berkman Center Research Publication No. 2011-04.
- British Copyright Act (1709), 8 Anne, c 19.
- British Statute of Monopolies (1624) 21 Jac. I, c 3.
- Cohen, Wesley M.; Nelson, Richard R.; Walsh, John P. (2000) Protecting Their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not). (Nat’l Bureau of Econ. Research Working Paper No. 7552).
- Duffy, John F. (2003) A Minimum Optimal Patent Term. doi:10.2139/ssrn.354282
- FFII (n.d.) Patentability and Democracy in Europe.
- Graham, Stuart J. H.; Merges, Robert P.; Samuelson, Pam; Sichelman, Ted (2009) High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey.
- Levin, Richard C.; Klevorick, Alvin K.; Nelson, Richard R.; Winder, Sidney G. (1987) Appropriating the Returns from Industrial R&D. Brookings Papers on Economic Activity, pp 783-831.
- Litman, Jessica (2001) Digital Copyright. Prometheus Books.
- López, Andrés (2009) Innovation and appropriability, empirical evidence and research agenda. In WIPO (2009) The Economics of Intellectual Property.
- Mansfield, Edwin (1986) Patents and Innovation: An Empirical Study, 32, Mgmt. Science 173.
- Patterson, Lyman Ray (1968) Copyright in Historical Perspective. Vanderbilt University Press.
- Pollock, Rufus (2007) Forever Minus a Day? Some Theory and Empirics of Optimal Copyright.
- Pollock, Rufus (2006) Innovation and Imitation with and without Intellectual Property Rights, MPRA Paper No. 5025
- Pollock, Rufus (2009) Forever Minus a Day? Calculating Optimal Copyright Term.
- United States of America Constitution.
- WIPO (2008) World Patent Report: A Statistical Review
Government Section References
- Wilson, N.; Thomson, G. (2005) Deaths from international terrorism compared with road crash deaths in OECD countries.